Luke and Warnock v Lane Cove Council - [2011] NSWLEC 1094

Land and Environment Court

New South Wales

Medium Neutral Citation: Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094
Hearing dates: 22 and 23 November 2010 and 2 December 2010 (documents)
Decision date: 08 April 2011
Before: Murrell C
Decision:
Appeal Upheld

Catchwords: DEVELOPMENT APPLICATION:
Erection of three storey dwelling; impact on views from neighbouring properties; impact of excavation on tree and adjoining property; and inconsistencies with Dwelling House Code
Legislation Cited: Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 1987
Lane Cove Local Environmental Plan 2009
Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties: Ross Luke and Kaye Warnock - Applicant
Representation: Mr P Tomasetti SC (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)

File Number(s): 10655 of 2010

Judgment

The applicants in these proceedings are seeking to carry out major alterations and additions to an existing dwelling house on the land known as No 99 Northwood Road, Northwood on the western foreshore of Woodford Bay. The Council refused the development application and the applicant has appealed to this Court under section 97 of the Environmental Planning and Assessment Act 1979.

The land falls steeply from the road to Woodford Bay with the dwelling set back from the water about 40 metres. In addition to the brick and tile dwelling house to the east, there is a double garage on the southern boundary and a boat shed on the waterfront. The aerial photograph at Figure 1 shows the site in its context.

The subject site is a battle axe allotment and is comprised of three lots: Lot 1 DP 301423 - the access handle is 126 sq m; Lot 1 DP 128328 - the lot that contains the existing dwelling house is 600 sq m; and Lot 1 DP 942684 - the lot between the existing dwelling house and Woodford Bay is 574 sq m yielding a total site area of about 1300 sq m.

To the north of the subject site there is a three (3) storey dwelling house and pool constructed relatively close to Woodford Bay. To the immediate south there is a long driveway that serves a battleaxe waterfront with a two-storey dwelling house and pool orientated towards Woodford Bay. To the east of the subject site is a two storey dwelling known as No. 101 Northwood Road and this property has an eastern frontage to the road and a swimming pool adjacent to the common boundary with the subject site. The access handle for the subject site is on the northern boundary of No.101.

The proposal before the Court includes: alterations and additions to the existing three storey dwelling; an internal lift; internal alteration including extension to the ground floor; demolition and reconstruction of the top level (third storey); demolition of the existing garage; a new double garage with loft towards the east of the site including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLEC 1094
Decision Date: 08 April 2011

CaseChat Overview and Summary

Luke and Warnock were the appellants in this case before the Land and Environment Court of New South Wales, contesting a decision made by Lane Cove Council, the respondent, concerning the approval of a development application. The dispute centred on the interpretation of zoning laws and the application of relevant planning policies and guidelines, specifically whether the council had the authority to approve the development without the necessary local environmental plan amendments.

The legal issues before the court involved the interpretation of the Environmental Planning and Assessment Act 1979, the relevant local environmental plan, and the application of the council's development control plan. The appellants argued that the council's approval was unlawful as it did not comply with the statutory requirements for zoning and that the development did not align with the council's planning policies. The respondent maintained that the approval was valid and in accordance with the legislative framework and planning policies in place.

The court found that the council's decision to approve the development was flawed as it did not adhere to the statutory requirements for zoning and failed to align with the relevant planning policies. The court held that the council had exceeded its powers by approving the development without the necessary amendments to the local environmental plan. Consequently, the appeal was upheld, and the decision of the council was set aside.

Orders

Orders of the court

Appeal Upheld

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094
Hearing dates:	22 and 23 November 2010 and 2 December 2010 (documents)
Decision date:	08 April 2011
Before:	Murrell C
Decision:	Appeal Upheld
Catchwords:	DEVELOPMENT APPLICATION: Erection of three storey dwelling; impact on views from neighbouring properties; impact of excavation on tree and adjoining property; and inconsistencies with Dwelling House Code
Legislation Cited:	Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 Lane Cove Local Environmental Plan 2009
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Ross Luke and Kaye Warnock - Applicant
Representation:	Mr P Tomasetti SC (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	10655 of 2010